Allahabad High Court
Om Prakash Tiwari vs Union Of India And 3 Others on 26 March, 2021
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 33 Case :- WRIT - A No. - 2999 of 2021 Petitioner :- Om Prakash Tiwari Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Avadhesh Kumar Upadhyay Counsel for Respondent :- A.S.G.I.,Krishna Mohan Asthana Hon'ble Ashwani Kumar Mishra,J.
Heard learned counsel for the petitioner and Sri K. M. Asthana, learned counsel for the respondents.
Petitioner was dismissed from service on 02.08.1993 on the charge of defalcation of funds. A charge-sheet was served, a detailed enquiry was conducted and the findings of the Enquiry Officer were furnished to the petitioner. The order of the dismissal was not challenged. It appears that a first information report was also lodged in the matter in which criminal proceedings have also been initiated and ultimately an order of acquittal has been passed in favour of the petitioner on 27.07.2019. It is thereafter that petitioner raised a claim for payment of gratuity and his petition was dismissed vide following order passed in Writ Petition No.20622 of 2019 on 19.12.2019:-
''This petition has been filed for a direction upon the respondent back to provide amount of gratuity and other retiral benefits due and payable to petitioner.
Perusal of records would go to show that petitioner was proceeded with departmentally by the respondent bank on charges of misconduct which led to passing of an order of dismissal on 02.08.1993. This order of dismissal has attained finality. Sri K.M. Asthana, learned counsel appearing for the respondent bank has placed reliance upon Rule 3(4) of the Chapter VIII of the General Conduct Rules which provides that an employee who has been dismissed on misconduct shall not be entitled for gratuity. The rules in that regard has been referred to in a recent judgment of the Apex Court in the case of Canara Bank and others Vs. Lalit Popli (Dead) Through L.Rs., AIR 2018 SC 70. Paragraph 7 and 8 of the judgment are reproduced hereafter:-
''7. Rule 12 of the Canara Bank Employees? Gratuity Fund Rules (for short, ?Gratuity Rules?), Clause 19 of the Canara Bank Staff Provident Fund Regulations, 1994 (for short, Provident Fund Regulations) and Rule 3(4) of Chapter VIII of the General Conduct Rules, governing the services of the employees fully support the action taken by the bank against the respondent in withholding the amount of gratuity and employer?s contribution towards provident fund.
8. Rule 3(4) of Chapter VIII of the General Conduct Rules states that ?an employee who is dismissed for misconduct shall not be entitled to gratuity?.
Rule 12 of Gratuity Rules reads thus:
?Rule 12. Notwithstanding anything contained in the preceding Clauses where an employee has been dismissed for misconduct and such misconduct has caused financial loss to the Bank, he shall not be eligible to receive the gratuity to the extent of the financial loss caused to the Bank.? Likewise, Clause 19 of Provident Fund Regulations reads thus:
?Clause 19. If a member causes financial loss to the Bank by misconduct, fraud, gross negligence or other conduct of like nature and is dismissed from the service of the Bank or is permitted to leave the service of the Bank in consequence of such misconduct, fraud, gross negligence or other like conduct, the amount of such financial loss sustained by the Bank shall be deduced by the Trustees from the Bank?s contribution out of the amount due to the member and be paid to the Bank.? Special Rules relating to gratuity, mentioned supra, makes it amply clear that the employee who has been dismissed for his misconduct and if such misconduct has caused financial loss to the bank, he shall not be eligible to receive the gratuity to the extent of financial loss caused to the bank. So also, Clause 19 of the Provident Fund Regulations permits the bank to deduct the payment of provident fund to the extent of financial loss caused to the bank from the bank?s contribution. Both the aforementioned Clauses are plain and simple. They are unambiguous. Since Rule 12 of the Gratuity Rules and Clause 19 of the Provident Fund Regulations permit the bank to withhold gratuity and deduct the bank?s contribution towards provident fund, in such matters, the bank was justified in recovering the amount of financial loss sustained by it, which was caused by the respondent, from out of the gratuity and employer?s contribution towards provident fund payable to the respondent/employee.
The applicability of the aforesaid rules is not in question. The validity of the rules are also not questioned. In that view of the matter once the petitioner has been dismissed from service on a proved charges of misconduct, he cannot come up with a claim for payment of gratuity and other benefits.
Writ petition lacks merits and is, accordingly, dismissed.
The petitioner after expiry of 27 years has preferred a departmental appeal, which has been rejected on the ground of delay vide order dated 08.01.2021. It is this order which is challenged in the present petition.
Delay of 27 years is sought to be explained on the ground that petitioner was under a bonafide belief that as criminal proceedings are also pending he must await its outcome.
Such plea of the petitioner cannot be accepted inasmuch as law is settled that disciplinary proceedings are to be held on the basis of preponderance of probability while the benchmark for criminal trial would be establishment of guilt beyond reasonable doubt. Pendency of criminal trial, therefore, cannot be a ground for non filing of appeal. The petitioner initially raised a claim for payment of gratuity which came to be rejected on 19.12.2019. It is after expiry of nearly one year thereafter that he has filed the appeal. It cannot be said that mere pendency of criminal case was a ground for non filing of appeal. This otherwise cannot be a ground to condone the delay. Rejection of petitioner's appeal on the ground of delay in such circumstances merits no intereference.
Writ petition lacks merits and is, accordingly, dismissed.
Order Date :- 26.3.2021/Abhishek Singh